8 Fla. L. Weekly Supp. 745a
Insurance — Personal injury protection — Attorney’s fees — Plaintiff is entitled to recover attorney’s fees and costs from insurer which settled during suit — Insurer’s claim that it had no notice of plaintiff’s claim prior to lawsuit is rejected — Without contingency risk enhancement, plaintiff would have faced substantial difficulties in finding competent counsel in the relevant market — Multiplier of 2.0 awarded where likelihood of success was even at outset of case
ODINO JOSEPH, Plaintiff, v. OMNI INDEMNITY COMPANY, Defendant. County Court, 20th Judicial Circuit in and for Collier County, Civil Division. Case No. 00-1558-CC. August 13, 2001. Lawrence D. Martin, Judge.
ORDER ON PLAINTIFF’S MOTIONTO TAX ATTORNEYS FEES AND COSTS
THIS CAUSE came to be heard upon the plaintiff’s motion to tax attorney fees and cost and the court having heard testimony of Leon Skinner, Mark Boyle, Esq. and K. Jack Breiden, Esq., and having further considered the entire court file and all of the evidence adduced at the hearing held July 18, 2001, the court makes the following findings of fact and conclusions of law:
I. THE ENTITLEMENT ISSUE
On December 8, 1998, plaintiff was involved in a motor vehicle accident. At the time of the accident, plaintiff had available coverage for workers compensation benefits and Florida personal injury protection (PIP) benefits. Following settlement with the third party, plaintiff satisfied the workers compensation lien for $2,202.80. Suit herein was filed in October, 2000, seeking to recover available PIP benefits to reimburse plaintiff for the monies paid to satisfy the workers compensation lien.
The suit was vigorously defended. Initially, Omni claimed that all benefits had been exhausted prior to suit. In fact, in January 2001, Omni notified plaintiff’s attorney that unless the plaintiff filed a voluntary dismissal, it would seek Chapter 57.105 attorney fees. Discovery eventually revealed that the benefits were not exhausted — approximately $220.00 remained available. Notwithstanding, mediation ended in an impasse and the case was set for jury trial. Plaintiff moved for summary judgment which was heard at the pretrial conference June 6, 2001. Omni argued the existence of disputed issues of fact, and the motion was denied. On June 8, 2001, Omni tendered the remaining benefits with interest.
When an insurer settles during suit it must pay attorney fees and costs. Wollard v. Loyds & Cos., 439 So.2d 217, 218 (Fla. 1983); Fitzgerald & Co. Inc. v. Roberts Electrict, 533 So.2d 789 (Fla. 1st DCA 1988). However, Omni challenges plaintiff’s entitlement to fees and cost, arguing that the claim file forwarded to the litigation adjuster does not contain notice of plaintiff’s claim prior to the lawsuit. Absent such notice, Omni maintains that it had no obligation to tender benefits and therefore has no obligation to pay fees and cost.
Leon Skinner testified regarding the entitlement issue. Mr. Skinner was employed by the law firm that settled plaintiff’s workers compensation claim. He stated that on May 11, 2000, he sent Omni written notice of the subrogation satisfaction and the claim for the PIP benefits available. A copy of the letter and satisfaction were placed into evidence. It is not in dispute that the notice was properly addressed. Mr. Skinner also stated that he personally spoke to an Omni claims representative regarding his May 11 notice and was told that Omni was not going to pay any benefits.
Mr. Skinner was the only person to testify at the hearing who had personal knowledge of the events regarding notice prior to the lawsuit. Omni offered the deposition of Susan Love, but Ms. Love was not involved with the claim until after suit was filed (p. 4, line 15). The court finds that Mr. Skinner’s testimony is credible. Accordingly, Omni had notice of the covered loss and the amount of same prior to suit. The plaintiff is entitled to recover reasonable fees and cost.
II. AMOUNT OF REASONABLE FEES
A. TIME AND LABOR
Plaintiff’s attorney, K. Jack Breiden, Esq., submitted an itemized affidavit of attorney hours, and supplemented the affidavit with testimony regarding the services rendered after the affidavit was executed. He also testified that his hourly rate was $225.00 per hour at the time suit was filed, but that the rate had been changed to $250.00 per hour on January 1, 2001.
Attorney Mark Boyle testified that he had reviewed the file and the affidavit of fees for the purpose of determining the reasonableness of the time involved and a reasonable hourly rate for the attorney rendering the services. He testified that 7.2 attorney hours at $225.00 per hour was reasonable prior to January 2001. He further testified that 42.30 attorney hours at $250.00 per hour was reasonable for services rendered after January 1, 2001. As to paralegal services, Mr. Boyle testified that 11.6 hours at $85.00 per hour was reasonable and necessary.
B. NOVELTY, COMPLEXITY AND SKILL REQUIRED
This was not a run of the mill insurance case. See U.S. Sec. Ins. Co. v. Lapour, 617 So. 2d 374 (Fla. 3rd DCA 1993). The case involved a higher level of skill. Defendant’s 26 affirmative defenses show the level of complexity that has been thrust on an area of law which could be more simple. See Deutsch v. Regal Ins. Co., 8 Fla. L. Weekly Supp. 401 (Judge Nancy Perez, Palm Beach Cty. Ct., March 26, 2001). Additionally, there were issues of concurrent payment of PIP with workers compensation, possibility of a proposal for settlement, notice requirements and the recovery of reasonable fees and cost.
C. AMOUNTS INVOLVED AND RESULTS OBTAINED
Plaintiff’s attorney sought and obtained payment in full of available coverage and interest. The result obtained was the maximum that could be achieved.
D. CONTINGENT NATURE OF FEE, RELEVANT MARKET AND MITIGATION OF RISK
Plaintiff had a pure contingent fee contract with Mr. Breiden. Mr. Breiden undertook the entire risk of the loss of recovery in this case. The contract only allowed for the fee to be determined by the court. Plaintiff was not obligated to pay anything whatsoever absent the court award. Therefore, the application of the contingency risk multiplier to the loadstar is within the sound discretion of the court.
Mr. Boyle testified that competent representation in the instant action required an experienced trial attorney with a well founded knowledge of insurance claim disputes. He further testified that in the relevant market (specifically, the 20th judicial circuit) attorneys of skill and reputation similar to Mr. Breiden will not accept a case such as this without the possibility of the multiplier.
In Bell vs. U.S.B. Acquisition Co. Inc., 734 So. 2d 403 (Fla. 1999), cited by plaintiff, the Florida Supreme Court re-emphasized that the critical factor for the court to consider in deciding whether to apply the multiplier was the party’s difficulty in finding council without risk enhancement:
Before adjusting for risk assumption, there should be evidence in the record, and the trial court should so by, that without risk enhancement plaintiff in the face substantial difficulties in finding council in the local or relevant market.
The court further stated:
The primary rationale contingency risk multiplier is to provide access to competent counsel for those could not otherwise afford it. In Rowe, we observed that the benefit of the contingent fee system is to provide a party with “increased access to the court system and the services of attorneys” (citation) We recognized in Rowe the availability of attorneys fees would have the effect of encouraging plaintiffs to bring meritorious claims that would not otherwise be economically feasible to bring on a non-contention fee basis.
There is evidence in the record, and the court so finds, that without risk enhancement plaintiff would have faced substantial difficulties in finding competent counsel in the relevant market. A multiplier is applicable.
E. CONTINGENCY RISK MULTIPLIER
Plaintiff’s expert witness Mark Boyle testified that the likelihood of success in this case was about even in his opinion. The court finds that at the outset this case had about an even likelihood of success. Thus, it is within the court’s discretion to apply a multiplier of up to 2.0. The court awards a multiplier of 2.0.
F. REASONABLE COSTS
The parties stipulated to the cost of $269.25.
G. EXPERT WITNESS FEES OF ATTORNEY
If the expert witness in a fee hearing expects to be paid for his time in preparing and testifying, the court has no discretion to deny the attorney an expert witness fee. Stokus v. Phillips, 651 So. 2d 1244 (Fla. 2nd DCA 1995). Mr. Boyle testified without contradiction that he extended 5.5 hours for meeting with attorney Breiden, reviewing attorney Breiden’s file in preparation for testimony and in testifying. Mr. Boyle also testified without contradiction that his hourly rate for such testimony is $200 per hour. Accordingly, the court finds the plaintiff is entitled to $1,100.00 for this expert witness.
H. PREJUDGMENT INTEREST
Court declines to award prejudgment interest.
Based on the above, the court finds and it is ORDERED AND ADJUDGED that the reasonable attorney fees, cost and interest in this case are:
A. Attorney time of 7.2 hours for K. Jack Breiden (number of hours reasonably and necessarily expended to January 1, 2001) X $225.00 per hour (reasonably hourly rate) = $1,620.00 (Loadstar) X 2.0 (contingency multiplier) = $3,240.00.
B. Attorney time of 42.30 hours for K. Jack Breiden (number of hours reasonably and necessarily expended after January 1, 2001) X $250.00 per hour (reasonably hourly rate) = $10,575.00 (Loadstar) X 2.0 (contingency multiplier) = $21,150.00.
C. Paralegal time of 11.6 hours at $85.00 per hour = $986.00.
D. Total costs of $269.25.
E. Expert witness fee for Mr. Boyle for 5.5 hours of preparation and testifying at $200.00 per hour = $1,100.FINAL JUDGMENT
Pursuant to the attorney fee hearing held in this matter and the order on attorneys fees and costs rendered in this action,
IT IS ORDERED AN ADJUDGED that plaintiff recover from defendant the sum of $26,745.25, for which sums the execution issue.
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